B-228089, Nov 6, 1987, 87-2 CPD 456
B-228089: Nov 6, 1987
PROCUREMENT - Specifications - Minimum Needs Standards - Competitive Restrictions - Allegation Substantiation - Evidence Sufficiency DIGEST: Protest that specification is in excess of contracting agency's minimum needs and is unduly restrictive of competition is denied where there is no showing that agency lacked a reasonable basis for requiring inert batt insulation in attics of military family housing due to safety concerns. Are unduly restrictive. The IFB also requires those bidders who add fire retardant chemicals to their products in order to comply with the insulation fire hazard specifications to provide certification from a nationally recognized testing laboratory or agency that such chemical is permanently bound to the insulation material for the life of the product.
B-228089, Nov 6, 1987, 87-2 CPD 456
PROCUREMENT - Specifications - Minimum Needs Standards - Competitive Restrictions - Allegation Substantiation - Evidence Sufficiency DIGEST: Protest that specification is in excess of contracting agency's minimum needs and is unduly restrictive of competition is denied where there is no showing that agency lacked a reasonable basis for requiring inert batt insulation in attics of military family housing due to safety concerns.
Fiber Master, Inc:
Fiber Master, Inc. protests that the specifications in invitation for bids (IFB) No. F16602-87-B005, a small business set-aside issued by Barksdale Air Force Base (AFB), Louisiana, are unduly restrictive.
We deny the protest.
The IFB solicited bids for the installation of attic insulation in military family housing at Barksdale AFB. The Air Force has issued amendments to the IFB revising the initial specification for total blown- in type insulation to require inert batt type mineral fiber insulation for open and accessible attic areas. The IFB also requires those bidders who add fire retardant chemicals to their products in order to comply with the insulation fire hazard specifications to provide certification from a nationally recognized testing laboratory or agency that such chemical is permanently bound to the insulation material for the life of the product.
Fiber Master responded to the initial IFB by letter of February 3, 1987, requesting that its loose fill insulation, BAR/R, be approved and added to the technical specifications. Fiber Master also asserted that BAR/R has been approved by the General Services Administration for use in this type of project since it meets the requirements of Federal Specification HH1515D, which the Air Force advises is no longer in use. The Air Force disapproved Fiber Master's insulation product and issued the above- mentioned amendments to the IFB's technical specifications. Fiber Master contends that the Air Force discriminated against the company by so doing and because it cannot supply batt insulation and the firm would be excluded from competing due to the batt insulation requirement.
In its response to Fiber Master's protest, the Air Force states that the decision to require inert insulation materials was based primarily upon safety factors and was supported by the technical analysis of agency engineers. The Air Force explains that it would not allow cellulose loose fill, an organic insulation material treated with fire retardant chemicals, for the open accessible attic areas because this type of insulation has been found to lose its non-combustible treatment by exposure to moisture over time, necessitating subsequent costly treatment to restore its fire retardant properties.
A contracting agency has the primary responsibility for determining its minimum needs and the best method of accommodating those needs. Doss Aeronautical Services, Inc., B-222914, Aug. 27, 1986, 86-2 CPD Para. 232. The contracting agency also has the primary responsibility for drafting the specifications to reflect its minimum needs. PTI Services, Inc., B-225712, May 1, 1987, 87-1 CPD Para. 459. We have recognized that government procurement officials are most familiar with the conditions under which products have been used in the past and are in the best position to know the government's actual needs. Nupla Corp., B-225545, Mar. 6, 1987, 87-1 CPD Para. 264. Consequently, we will not question an agency's determination of its actual minimum needs unless there is a clear showing that the determination has no reasonable basis. Ray Service Co., 64 Comp.Gen. 528 (1985), 85-1 CPD Para. 582.
When a protester challenges a specification as unduly restrictive of competition, the burden initially is on the procuring agency to establish prima facie support for its contention that the restrictions it imposes are needed to meet its minimum needs. However, once the agency establishes this prima facie support, the burden shifts to the protester to show that the requirements complained of are clearly unreasonable. PTI Services, Inc., B-225712, supra.
The Air Force states in its report that its safety concerns are supported by its prior experience with a cellulose insulation on the ceiling of the Base Hospital Mechanical Mezzanine, which after several years lost its fire retardant treatment and became highly combustible. Additionally, Air Force engineers have found some fire retardant chemicals found in cellulose materials to have a corrosive effect on various metals, such as copper, steel and aluminum, commonly present in the attics of military housing and that the cellulose insulation, often made of shredded waste paper and chemically treated, does not maintain its fire retardant characteristics over time. The Air Force engineers state, based on some testing of the product and technical literature, that the batt insulation specified is not corrosive and does not require fire retardant additives and thus its fire retardancy will not deteriorate. The Air Force further explains that its decision to change the specifications from loose fill to inert batt insulation for open attic areas is justified due to the transient nature of their military housing occupants and the frequent use of attic space as additional living or recreational areas. Inert batt insulation also was found to be preferable by the agency because it would not be as easily disturbed by occupants of the housing as blown-in loose fill insulation.
We find no basis to question the reasonableness of the Air Force's requirement for batt insulation in the open accessible attic areas of its military housing. Fiber Master has not rebutted the Air Force explanation for requiring batt insulation in open attic areas. Simply, the Air Force has shown that the mineral fiber insulation is noncombustible and noncorrosive while the cellulose insulation loses its fire retardancy and does break down over time.
The protester argues that the insulation used in the hospital ceiling which lost its fire retardant properties is not the one it is proposing and that the Air Force has had no prior poor experience with the cellulose material offered by Fiber Master. However, even assuming that the hospital example is not directly applicable, this does not rebut the technical finding of the Air Force engineers that the specified insulation is the safer product for the open accessible attic areas. Accordingly, the protester has not shown that the Air Force lacked a reasonable basis for requiring inert batt insulation or that the agency was unreasonable in its determination of its minimum needs. This is especially so in light of the fact that the agency has demonstrated that the requirement concerns and protects the safety of human lives. See PTI Services, Inc., B-225712, supra.
While Fiber Master argues that the specifications calling for inert batt insulation should be held unduly restrictive because neither Fiber Master or any other small business makes that kind of product, it is well established that the number of possible sources for an item or service does not determine the restrictiveness of specifications. Doss Aeronautical Services, Inc., B-222914, supra. In the same vain, a specification is not improper merely because a potential bidder cannot meet its requirements. Tooling Technology, Inc., B-215079, Aug. 6, 1984, 84-2 CPD Para. 155.
Fiber Master has not met its burden of showing that the Air Force's justification for the specification for batt insulation is unreasonable. In view of this conclusion, we need not further discuss Fiber Master's argument that the fire retardant treatment requirement is allegedly restrictive. The specified requirement for batt insulation which we find unobjectionable precludes the protester from offering its loose fill insulation product to satisfy the government's needs and by its own admission prevents it from competing. See Tooling Technology Co., B-215079, supra.
The protest is denied.